Frac sand company appeals lawsuit

(1/22/2018)

by CHRIS ROGERS

Minnesota Sands is not done challenging Winona County’s frac sand mining ban in court. Winona County District Court Judge Mary Leahy ruled last November to uphold the county’s ban. Last week, the would-be mining company appealed the case to the Minnesota Court of Appeals.

Minnesota Sands stated that it holds leases or interests to $3.6 billion in frac sand deposits in Winona County. The rural La Crescent-based company and another group — Southeast Minnesota Property Owners — sued the county in spring 2017. Among other claims, they argued that the ban on any mining or processing of sand used for fracking — while allowing the mining of sand for construction and agriculture uses — violated the U.S. Constitutions’ interstate commerce clause and the U.S. and Minnesota constitutions’ equal protection and due process clauses.

The county’s claims that it adopted the ban to protect groundwater, scenic beauty, and citizens’ health are a sham, Minnesota Sand attorney Christopher Dolan wrote in a memo to the district court last fall. “If the county were actually concerned about mining’s impact on its natural resources and community health, it would have regulated the size of mines, scope of mining, or type of mines allowed in the county; it would not have banned the sale of sand to a particular type of end user,” he wrote.

Pointing to citizen testimony, expert studies, and cautionary tales from Trempealeau County, Leahy wrote in her ruling that “the wide variety of evidence presented to the county amply supports the county’s actions.” She added that “the county determined there were several unique characteristics to industrial mineral mining that could be hazardous to the county in a way entirely different from construction mineral mines.”

According to Minnesota Sands’ court filings, another disagreement during district court arguments will be a focus in the appeal: whether the district court used the right burden of proof to judge the legality of the county’s ban. During oral arguments, the attorney for the county, Jay Squires, said that, when it comes it zoning rules, courts should not overturn the decisions of democratically elected county boards as long as there is some justification for the rules. To try to prove that the ban is illegal, the frac sand company faces a high bar — “a pole vault,” he said. In her decision, Leahy largely agreed with Squires. Citing numerous cases, the judge wrote that the county’s ban is presumed to be legal unless the challengers can prove otherwise. The plaintiffs argued that, when it came to their claims that the ban violated the interstate commerce clause, the burden of proof should have fallen on the county. Leahy ruled that the interstate commerce clause did not apply to the case at all. When attorneys for mining groups pointed to Winona County Attorney Karin Sonneman’s own legal advice to the County Board as evidence for their claim, Leahy interjected, reminding them that Sonneman’s opinion is not the law.

The other plaintiff in district court, Southeast Minnesota Property Owners, has not filed an appeal. The group’s president was not immediately available for comment for this story. After Leahy ruled, an attorney for the organization said it was weighing its options.

The Land Stewardship Project (LSP), an environmental and sustainable agriculture organization, led a campaign for the ban’s creation. In a statement, LSP Policy Organizer Johanna Rupprecht wrote of Minnesota Sands’ appeal, “It is yet another outrageous and desperate attack by an industry that is unwilling to take ‘no’ for an answer in its quest to exploit our region’s hills, bluffs, and farms for the silica sand found beneath them. No industry has a right to profit by harming public health, safety and welfare or destroying the land.”

Minnesota Sands’ decision to appeal the case may affect its attempt to move forward with mining in Fillmore County. When Minnesota Sands first emerged in 2012, it proposed a cluster of 11 mines in Winona, Fillmore, and Houston counties. The company wound up agreeing to conduct an in-depth study called an Environmental Impact Statement (EIS) to analyze the combined environmental effects of all 11 mines. The company never followed through, and its mining proposals have sat on the shelf ever since. Last fall, while the district court case was still up in the air, Minnesota Sands asked the state Environmental Quality Board (EQB) to release it from the EIS requirement so that it could move forward with mining at one 56-acre site in Fillmore County. Opponents, including some local citizens, said that Minnesota Sands should not be allowed to move forward with any mines until it completes the full study. The EQB refused to act on Minnesota Sands’ request until the Winona County case was resolved; the state regulators postponed their decision to see how Leahy would rule and whether either side would appeal. The EQB is expected to review the issue again in March.